TaxTMI 
TaxTMI 
2011 (2) TMI 637
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....100% EOU manufacturing polyester tops, wool tops, woollen and polyester wool blended grey fabric, woollen yarn and wool noils. It appeared that they had not obtained permission from the Development Commissioner for clearance of their products into DTA and accordingly the department conducted investigations. As per the investigations, it was noted that the assessee had not obtained prior permission for the Development Commissioner for the clearance into DTA of the following products for the periods mentioned against each of them. Sr. No. Products Period 1. Wool tops/noils 3.4.1998 to 2.9.1998 1.7.1999 to 9.2.2000 2. Worsted yarn and grey fabrics 3.4.1998 to 23.12.1998 1.10.1999 to 23.5.2000 3. Wool Grease 1.4.1998 to ....
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....nd and even after the period of demand. These authorisations/permissions are nothing but the entitlement of the assessee to clear specified quantity of goods. Thus, the assessee were entitled to clear goods to DTA before the period of demand and also after the period of demand. The important factor would be whether the said clearances exceeded their entitlement limit. From the details of clearances given by the assessee in their submission it is found that they have not exceeded the said limit. This fact was not alleged in the notice is also an indicative factor that the clearances did not exceed the limit. Merely for the reason that there was gap in obtaining the authorisation/permission for certain peri....
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....can be assigned to the term 'allowed to be sold in India' in the said Notification is that clearances of goods should be in accordance to the EXIM policy and the Hand Book Procedures. The clearances of the assessee into DTA are in accordance to the provisions of EXIM policy 1997-2002 and the Hand Book of Procedure. Therefore, I have to hold that the show-cause notice is entirely devoid of any sound foundation and is liable to be dropped. Since the demand is unsustainable there can be no basis for imposing penalty. In view of the above findings, the Commissioner dropped the proceedings initiated under the show-cause notice. 5. Aggrieved by the said order of the Commissioner the department is in appeal before ....
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....nder main section 3(1) of CEA 1944. The ld. DR also relies on the judgement in the case of Endress + Hauser Flowtec (I) P. Ltd. vs. CCE Aurangabad 2009 (237) ELT 598 and Global Polybag Indus. (P) Ltd. vs. Jt. DC Madras Export Processing Zone 2003 (151) ELT 512 (Mad) in support of his contentions. 7. On the other hand, the ld. counsel for the respondent assessee placed reliance on the judgment of the Hon'ble Apex Court in SIV Inds. 2000 (117) ELT 281 (SC), CCE vs. Pratap Singh 2003 (153) ELT 711, Sam Spintex Ltd.& Anr. vs. CCE 2004 (60) RLT 405 and CCE vs. NCC Blue Water Products Ltd. 2010 (258) ELT 161 (SC). Ld. counsel for the respondent submits that in all these judgments it has been held that even if there was no perm....
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....tly observed that as per 9.30 of the EXIM policy the assessee was entitled to clear the same into the DTA to the extent of 5% and the quantity cleared by the assessee is well within this limit. The finding of the Commissioner clearly reveals that the quantities of the various products cleared by the assessee into DTA is well within the quantity specified in the authorisations given by the Development Commissioner and it covers the period both prior to the issue of show-cause notice, as also during the period mentioned in the show-cause notice. There has only been a delay in getting the authorisations from the Commissioner; otherwise the clearance are in accordance with the authorisations given even though subsequently. Nei....